The new test is whether or not certain treatment was unfavourable to the person claiming discrimination, focusing on the consequences of the treatment on the person claiming direct discrimination because of a protected attribute. Examples of direct discrimination An employer advises an employee that they will not be trained to work on new machinery because they are too old to learn new skills.
The employer has discriminated against the employee by denying them training in their employment on the basis of their age. A real estate agent refuses an African man’s application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race. Indirect
The definition of indirect discrimination has been simplified by removing existing technicalities and providing further clarity around the factors to consider in determining whether a requirement, condition or practice is reasonable in the circumstances. Indirect discrimination will occur where a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging people with a protected attribute, and that is not reasonable.
The new test for indirect discrimination: – needs a person to show that the requirement, condition or practice causes, or is likely to cause disadvantage, rather than demonstrating that they cannot comply with a requirement, condition or practice – removes the requirement that the person claiming indirect discrimination must establish that a substantially higher proportion of people without the attribute that they have can comply with the requirement, condition or practice – places the onus of proof regarding the easonableness of the requirement, condition or practice on the person who imposed or proposes to impose it – extends the factors to be considered in determining whether a requirement, condition or practice is reasonable.